Critics allege planning panel broke meeting law Quorum of members discussed public issue by e-mail in Feb.

April 04, 1996|By Mary Gail Hare | Mary Gail Hare,SUN STAFF

Politicians, a citizens group and a member of the county Planning Commission are questioning whether commissioners violated the state's Open Meetings Act by using electronic mail to informally discuss a proposed subdivision.

The incident -- which involved four of the seven commissioners and took place over a period of several days in February -- has prompted a request by Del. Joseph M. Getty for a ruling from the state attorney general's office.

"There was an analysis by one commissioner sent to a quorum on e-mail," Mr. Getty, a Carroll Republican, said yesterday. "That is public debate in private. There was discussion about a motion and what would be contained."

That motion eventually was made at a formal meeting, he said.

Commissioner Robert H. Lennon, who made public the communications of his colleagues, agreed.

"There is no difference whether communication occurs through a conference call or at a breakfast meeting," said Mr. Lennon. "It is improper to communicate outside the public forum."

The open meeting dispute, which one state official said may be the first of its kind in Maryland, was triggered by an e-mail discussion about Slasman's Crossing, a six-unit subdivision proposed for Westminster.

In December, the seven-member commission cited inadequate facilities and denied preliminary plans for the project.

Charles O. Fisher, the attorney representing the developer, later wrote to commission members that his client's rights were violated by the denial and asked them to reconsider the decision.

On Feb. 11, Commissioner Joseph Mettle sent e-mail messages to four other members seeking advice about Mr. Fisher's letter.

Three of them replied electronically, and on Feb. 12, Mr. Mettle told them that he would make a motion at the next commission meeting, telling the developer that the commission might reconsider his application.

"That is exactly the motion that occurred at the [Feb. 20] meeting," Mr. Lennon said.

Armed with transcripts of the e-mail messages -- given to him by Mr. Lennon -- the developer's lawyer demanded at the Feb. 20 commission meeting that members recuse themselves.

The issue was tabled and will come before the commission April 16.

Deborah Povich, executive director of Common Cause, a citizens watchdog group in Annapolis, said the incident in Carroll County "sounds like it is of legal concern. The question is as to whether they held a meeting without allowing public access."

Members of the commission, meanwhile, are divided about whether a violation took place.

Mr. Mettle, for example, said he asked George Lahey, the chief county attorney, for an opinion on whether e-mail was allowed for such communications.

"George Lahey said he had no problem with e-mail," Mr. Mettle said.

He also said that his colleague's actions in giving the e-mail transcripts to the developer's lawyer "smack of unethical dealings."

Mr. Lahey was not available for comment yesterday; neither was Laurel Taylor, another county attorney who reviewed the e-mail issue and said it did not violate the open meetings law.

Isaac Menasche, another attorney for the county, would say only that "they wouldn't have given that advice without checking into it."

But Mr. Lennon, a Westminster attorney, contends any communication outside the public forum violates the law.

In this instance, he said, e-mail was used "in contravention of the open meetings law."

He said the law states that the public has "the right to observe the deliberative process and the making of decisions by the public body at open meetings."

"E-mail is not the issue at all; it is what took place by whatever means of communication," said Mr. Lennon. "E-mail is simply the medium.

Mr. Getty has asked the state attorney general to decide if e-mail communications among a quorum of the commission violates the Open Meetings Act.

A spokesman for the attorney general's office said it could be at least two months before an opinion is issued.

"This is an issue we need to look at and possibly revise the code," said Mr. Getty, who said he may sponsor legislation in the 1997 session.